Archive Article
How the laws affect our lives
MAJOR REPORT - APRIL 2003 |
Recommendation 1
Amend the regulations under the Human Tissue Act 1983 (NSW) so that gay men are treated equally with all other sperm donors, including when they are donating to a known woman
Recommendation 11
Government support for a concerted public education campaign to ensure that lesbian and gay families are aware of their new rights and responsibilities. A surprising number of pare
Recommendation 3
Amend the Births Deaths and Marriages Regulations 2001 (NSW) so that co-mothers of DI children can be listed as the second parent on birth certificates
Recommendation 4
Amend the Births Deaths and Marriages Regulations 2001 (NSW) so that biological fathers of children born through donor insemination can be named on the birth certificate. This chan
MAJOR REPORT - APRIL 2003
The laws governing parent-child relationships may be state or federal, or a combination of the two.7 Because our starting point is what our families need and what our communities want, this report covers both NSW and federal laws when they impact on us.
The legal environment may limit who has children and how, through discriminatory provisions that restrict access to adoption and to fertility services. In our earlier discussion paper we focused only upon legal recognition once children were born. Yet in consultations a number of people raised serious issues relating to the law before they were able to have children, and many reported that discriminatory laws forced them to form their family in a way they would not have chosen.
While no women reported being turned away from fertility services, many stated that access was very much on a “Don’t ask, don’t tell” basis. Even where two women were attending services together staff would often simply pretend that they were not a couple, although they would also not inquire about a male partner so were clearly aware that they were providing a service to lesbians. Other women reported very positive experiences with clinics.
A major issue reported by women was that when they wanted to access anonymous donor sperm they were told that they could only choose from donors who had consented to “unmarried” women being the recipients. This practice appears to be fairly common in private fertility clinics. In one instance this meant a choice of two donors, while the available donors for married (or de facto heterosexual) couples included over 100 donors. The couple in that instance raised the very real concern that every lesbian in their local community would end up having children with the same biological father; they chose instead to have a child with a known donor, although this had not been their preference. This practice may be unlawfully discriminatory and should be brought to an end.
Gay men are even more overtly discriminated against by fertility services. Regulations under the Human Tissue Act 1983 (NSW) require all sperm donors (as well as blood donors) to fill in a declaration which asks, among other things, about male-male sexual activity.8 Some gay men reported that they had been turned away from donating semen as a result. Such measures are due to restrictions put in place at the outset of the HIV/AIDS epidemic in the early 1980s. Advances in testing for HIV and other communicable diseases render these restrictions unnecessary and discriminatory today. Other gay men who were intending to make a donation for a known lesbian woman or couple who accompanied them, reported that they were accepted but put through lengthy testing procedures. This involved the man undergoing HIV testing, a wait of 6 months and re-testing, in addition to the standard testing and storage of the semen itself. While this was clearly motivated by health concerns, such a practice is also unacceptable because the declarations required of donors under the Act expressly do not apply when the recipient is the wife or de facto partner of the man donating. This is presumably on the basis that she is able to make an informed decision as to the risks posed by using his semen, and the same standard should be applicable to women who are not in a sexual relationship with a donor but are choosing to have a baby with him. Lengthy testing procedures should be available as an informed choice rather than mandated as a coerced one.
In light of the current federal government’s entrenched opposition to non-discriminatory access to fertility services on the basis that heterosexual families are “ideal”, it is notable that no one reported that discrimination in such services actually prevented them from going ahead and fulfilling their desire to have a child.
Recommendation 1 Amend the regulations under the Human Tissue Act 1983 (NSW) so that gay men are treated equally with all other sperm donors, including when they are donating to a known woman.
It is also important to note that adoption is not currently available to lesbian and gay couples in NSW. Adoption transfers all of the legal rights and responsibilities of a parent onto a person who is not the biological parent of a child. Adoption is premised on the basis that all children can only have two parents, so adoption orders sever the legal relationship with one or both of the biological parents in order to award it to the adoptive parent/s. While a lesbian or gay man can adopt a child as a “single” person, a same sex couple cannot jointly adopt an unrelated child.
Several couples who attended consultations were involved in fostering children, some of whom had lived with them for many years. There is a desperate lack of foster carers in NSW and many agencies, including ones with religious affiliations, now actively recruit carers from the lesbian and gay communities in NSW. These carers, unlike heterosexual couples in the same situation, are unable to apply to adopt the child or children they are raising. This situation is not in the best interests of either foster children or their long term carers, who are prevented from obtaining formal recognition of their parent-child relationship with the added sense of stability and security that it would bring.
Where one partner has a biological child, same sex couples are also prevented from using adoption to give legal recognition to the non-biological parent. Adoption laws currently include a provision which allows step-parents to apply to adopt their partner’s child, but this is framed to only include heterosexual couples. (These provisions would not be adequate for lesbian co-mother families in any case, as will be discussed below.)
Having a baby through donor insemination has very different legal consequences compared to having a baby through intercourse. While a baby from intercourse has two legal, as well as biological, parents, donor insemination severs the legal relationship with the biological father. NSW law deems the consenting husband or male de-facto partner of a woman who has a child by donor insemination (DI) to be the child’s father for all legal purposes. Where there is no male de-facto partner, children born through donor insemination have only one legal parent, their mother. So in heterosexual families where children are born through DI the child has two legal parents, while in lesbian families they have only one. In neither case is the biological father recognised as a legal parent: this is so whether he is a known or anonymous donor or whether he is or is not listed on the child’s birth certificate.
With very few exceptions, a co-mother does not have a legally recognised relationship with her child under NSW or federal law.
Legal recognition of our relationships with the children we love and raise will matter at different times and for different purposes. It may, for example, affect who is entitled to receive child support from whom if the parents’ relationships break down, or whether a child will automatically inherit property or superannuation from a parent at their death. Areas we have identified as important are:
So, for example, if a co-father dies, his child will not automatically inherit from his estate if he has not left a will. If a lesbian couple separates, there are only very limited and expensive options for the mother to pursue the co-mother for child support. A co-parent may not be accepted by schools or doctors as authorised to make decisions about their child. Some laws only cover (and are only relevant to) children up to the age of 18, such as laws about contact and residence or child support. Other laws cover parent-child relationships with no age limit, such as inheritance law.
Contact between donor-dads and children was an area of significant concern for both mothers and biological fathers. One written submission from a researcher stated that in her experience, “Promises are not always delivered, especially between virtual strangers. The content of ‘father involvement’ may be poorly understood and poorly negotiated”. The submission went on to note that:
“A biological mother and biological father who are not negotiating reproduction in the context of an existing friendship may bring a great deal of fear and/or mistrust to the negotiations. The most prevalent fear expressed by lesbians was that the sperm donor would want to become ‘Father of the Year’. This could mean either attempt to get residence of the child or usurp the non-biological mother as the other parent or both. The most prevalent fear among gay men was that the lesbians just wanted to ‘take the sperm and run’.”
It is important to remember that issues such as contact with children, responsibility for children (including financial responsibility) and authority over children can all be distinct, and some may be more relevant to certain relationships than others.
Being legally recognised as a parent gives rise to the presumption that parents are jointly responsible for a child under the Family Law Act (Cth). But it is important to note that legal recognition is only a baseline and does not necessarily determine residence and contact disputes about children under the Family Law Act. Also note that the Family Law Act can be used by any person who has an interest in a child’s well-being; they do not need to have a biological or legal relationship with the child. In Family Law, therefore, being a legal parent gives rise to a presumption that you have responsibility for a child and provide residence for them, and it may give an advantage in times of dispute, but it does not in and of itself conclusively determine where children live or who they have contact with.
Many people who attended the consultations were unaware that they were able to use the Court, regardless of their lack of biological or legal relationship with the child. So, for example one donor-dad said he “hadn’t a leg to stand on” if the mother and co-mother denied him access to the child, because he thought that a lack of legal status as a father meant that he was unable to apply for contact through the Court. Likewise many co-mothers assumed that because they had no legal or biological relationship with the child they would not be entitled to use the Court to resolve a dispute with the mother if they separated.
Recommendation 11 Government support for a concerted public education campaign to ensure that lesbian and gay families are aware of their new rights and responsibilities. A surprising number of parents who attended our consultations were still unaware that their partnerships had been granted legal recognition in NSW law in 1999.
Of those parents who were aware that they could use the Court, several parents still expressed considerable apprehension about how the Court would deal with lesbian and gay families.
There is a clear need to provide greater certainty for lesbian and gay parents having children together, as well as more accessible and user-friendly dispute resolution mechanisms if and when conflict arises.
In our consultations we found widespread misapprehension about the legal role of birth certificates. Many participants mistakenly believed that if a man is named on the birth certificate as a father then he is conclusively a legal father to the child. This is not so.
Birth certificates give rise to a legal presumption of paternity, but this can be rebutted by other evidence. If the man listed on the birth certificate did not have sex with the mother but instead contributed his semen through donor insemination a simple statutory declaration from both parties saying that this is so is enough to rebut the presumption that would ordinarily flow from the birth certificate. However, rebutting the presumption involves having to go through the process of producing evidence and can be very invasive and unpleasant (and may, indeed, have to be produced many times for different official purposes, such as Centrelink payments, passports, etc). Therefore many women choose not to list the biological father on the birth certificate because it is much simpler not to.
A number of women stated that they felt unhappy leaving the biological father off the birth certificate, as they wanted the child to know his or her heritage and felt that the birth certificate had enormous symbolic and emotional importance to a child’s sense of identity. Several men also expressed this view. The parents who expressed these views did not want legal consequences to follow from the naming of the biological father on the certificate, but equally they felt that a certificate of birth which excluded the biological father (through stating that he was “unknown”) was a lie.
We have formed the view that it ought to be possible to list known donors on birth certificates without any legal presumption arising. This change would acknowledge biological paternity and would not have any legal effect. There is an increasing trend in Australia and elsewhere towards openness in providing children with information about their biological heritage in situations such as adoption and donor insemination. There have been moves to provide access to information about unknown donors and to relinquishing parents once children reach adulthood. Our recommendation is congruent with these general changes towards openness regarding information on their biological heritage.
Mothers and co-mothers reported that they wanted co-mothers to be listed on the child’s birth certificate. Later in this report we make recommendations about automatic recognition of co-mothers from birth that would also allow them to be listed on the birth certificate, as they are now in Western Australia.
We recommend that the biological mother and co-mother both be listed as legal parents on the birth certificate by making the parents non-gender specific (as WA has done, with a certificate that has parent 1 and parent 2). In this situation, the co-mothers would be treated equally with men whose de facto partner have a child through donor insemination.
A new space would be included that could list other important people. At present there is a space for the “informer” (usually the doctor or another person present at the birth) – this space could be made generic and the biological father listed there without any legal effect. Such a change requires a simple amendment to the Births, Deaths and Marriages Registration Regulations 2001 (NSW).
Recommendation 3 Amend the Births Deaths and Marriages Regulations 2001 (NSW) so that co-mothers of DI children can be listed as the second parent on birth certificates. Recommendation 4 Amend the Births Deaths and Marriages Regulations 2001 (NSW) so that biological fathers of children born through donor insemination can be named on the birth certificate. This change would not raise any legal presumptions.